Oregon Appellate Ct - April 27, 2016

Latest revision as of 12:16, April 29, 2016

Sexual Abuse II – “Subject" Does Not Require Proof that the Defendant Exerted Control

When a defendant is charged with sexual abuse based on allegations that he or she “subjected” a minor to sexual contact and the lack of consent is based on the victim's age, the state is not required to prove that the defendant exercised any control over the minor victim.

Here, the defendant was charged with sexual abuse in the second degree on the grounds that he knowingly subjected the victim, a minor and legally incapable of giving consent, to deviate sexual intercourse. At trial, the 16-year-old victim testified that she initiated oral sex with the 29-year-old defendant and the state introduced no evidence that the deviate sexual intercourse was against the girl's will. The defendant requested that the trial court instruct the jury that the term “subjects” required the state to prove that the defendant exerted some control over the victim in order to be convicted. The trial court denied the defendant’s request and the defendant was convicted.

On appeal, the court rejects the defendant's interpretation and finds that the overall statutory scheme supports a conclusion that any force or control implied by the word "subjects" is inherent when a person actively participates in sexual conduct with individuals incapable of consent. The court concluded that the legislature intended the term to mean "to cause to undergo. . .a particular action or effect: EXPOSE" as provided in Webster's dictionary definition. Thus, the state met its burden by showing that the defendant knowingly caused the victim to be exposed to his genitals and thus, actively participated in the oral sex.

Additionally, the Court of Appeals reaffirms Ofodrinwa and holds that the trial court did not err in denying the defendant’s MJOA on the grounds that the state did not prove that the victim did not actually consent because Sex Abuse II includes situations where the victim’s lack of consent is based solely on age. State v. Bernhardt, 277 Or App 867 (2016)

Article I, Section 11 – Implicit Waiver of Counsel – Waiver by Misconduct

There is not a knowing implicit waiver of counsel by misconduct where the defendant does not understand the risks and disadvantages of self-representation before he engages in the additional misconduct that forms the basis for a finding of implied waiver.

Here, the defendant had been appointed counsel twice and both times wound up unsatisfied and requesting that the court appoint new counsel. Before the trial court appointed the defendant’s third attorney, it warned the defendant that the third attorney would be the defendant’s last court appointed attorney. Defendant eventually became dissatisfied with his third court appointed attorney and both defendant and counsel asked to have counsel withdrawn from the case. At that point, the court explained that it would not appoint a new attorney for the defendant. Defendant continued to request that the court relieve his current attorney and appoint a new one. The court relieved the defendant’s current attorney and refused to appoint a new attorney. The defendant proceeded to trial without counsel and was convicted.

On appeal, the Court of Appeals reverses the defendant’s conviction, finding that his implicit waiver was not knowing because the trial court did not warn the defendant of the dangers of being forced to proceed pro-se before the defendant engaged in the misconduct that allowed the court to find an implicit waiver of counsel. Put another way, the trial court erred because it did not warn the defendant of the risks of self-representation before the defendant engaged in the misconduct that caused the court to refuse to appoint new counsel. According to the Court of Appeals, the defendant could not have implicitly understood the consequences of engaging in misconduct without an appreciation of the right to counsel and the risks of self-representation.

Judge DeVore dissents, contending that when a defendant implicitly waives his right to counsel by misconduct, the court is only required to warn the defendant that further misconduct may be deemed an implied waiver of counsel. Contrary to the majority, Judge DeVore contends that the trial court is not required to warn the defendant that engaging in misconduct and therefore waiving his right to counsel may jeopardize the defendant’s rights because such a warning has been construed as being intended for an express waiver of counsel and is unnecessary in a case in which the defendant has repeatedly said throughout the case that he wants an attorney. State v. Guerrero, 277 Or. App. 836 (2016)